Human Rights and the Environment in the Anthropocene

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Human rights and the environment in the Anthropocene

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Review

Human rights and the environment in the Anthropocene

Louis J Kotzé1,2,3

AbstractHuman rights are considered ethical demands that operate at an elevated juridical level. They have become popular legal constructs that contribute to the traditional instrumentalist and the more esoteric functions of law. While there is often considerable criticism leveled against human rights, as creatures of law and as legal mechanisms possessing unique characteristics, they are also uniquely situated and able to perform a singular mediating role in the human–environment interface. The recent mushrooming of rights to a healthy environment, environmental-related procedural rights and other substantive political and socio-economic rights bearing on environmental interests, is testimony to their increasing popularity. Yet, despite their prevalence in the environmental regulatory domain, the arrival of the Anthropocene is possibly set to require a complete rethink of the way in which we use human rights to mediate the human–environment interface. This is because the Anthropocene presents an urgent call for dramatic regulatory interventions of a kind hitherto unseen. Accepting the continuing prevalence of human rights as part of the environmental regulatory domain, this article argues that there is every reason to believe that their traditional role, nature, objectives and construction should change because of the Anthropocene. The article carries this argument by discussing the Anthropocene and its features that might influence conceptions of human rights and the environment as they are currently embedded in the social institutions of environmental law and governance. The argument then uses climate change as a useful explanatory context to identify and to understand the different types of rights issues that might arise in the Anthropocene. The next part of the discussion then takes stock of human rights in the environmental context by evaluating the way in which they currently mediate the human–environment interface. The article concludes with suggestions founding a re-imagination of the relationship between human rights and the environment in the Anthropocene.

KeywordsAnthropocene, anthropocentrism, climate change, Earth Charter, ecocentrism, environmental governance, environmental law, equity, justice, rights, sustainability

1North-West University, South Africa2University of Lincoln, UK3 Global Network for the Study of Human Rights and the Environment

Corresponding author:Louis J Kotzé, North-West University, 11 Hoffman Street, Faculty of Law, Potchefstroom 2521, South Africa. Email: [email protected]

547741 ANR0010.1177/2053019614547741The Anthropocene ReviewKotzéresearch-article2014

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2 The Anthropocene Review

Introduction

Scientists have recently estimated that the Earth is moving from the Holocene into the Anthropocene epoch (Zalasiewicz et al., 2008). It signifies a period in geological time where humans are consid-ered to be dominant forces equaling the great forces of nature that catapulted the Earth into earlier geological epochs. If recent scientific predications are to be believed, the ecological, and as a result the socio-legal, political and economic problems that arise in the Anthropocene will stead-ily become more severe, unpredictable, complex and of a magnitude hitherto unseen (Steffen et al., 2011).

As a result, society will probably have to revisit and interrogate the myriad socio-legal institu-tions that it uses to regulate or mediate the human–environment interface (otherwise understood as the relationship between humans and the environment). Environmental law and governance are examples of institutions that society would typically use in this respect, where law plays an impor-tant role in the regulation of the effects of human behavior on the environment and facilitating adaptation to changing environmental conditions.1 Allot generally describes the social functions of law (admittedly rather idealistically)2 as being three-fold: ‘(1) Law carries the structures and sys-tems of society through time. (2) Law inserts the common interest of society into the behavior of society-members. (3) Law establishes possible futures for society, in accordance with society’s theories, values and purposes’ (Allot, 2000: 69). In terms of this description, law is the architecture of society; it ensures that society protects its common interests and realizes its goals by influencing behavior; and based on its temporally forward-looking view, law acts now to make possible a cer-tain kind of world and society for the present and for the future. As part of the general law and governance paradigm, while human rights contribute to the three social functions of law identified by Allot, they also fulfill a much more esoteric function than the traditional instrumentalist func-tion of ‘normal’ law.3 This is so because human rights are ethical demands instead of legal com-mands or putative legal claims, providing a juridical expression of the underlying ethics of a society. This is a consideration which is illustrated by the fact that the implementation of human rights often goes well beyond legislative enactment and enforcement (Amartya, 2004: 315, 319). Human rights, when they lay claim to a value or good, that claim or value is automatically raised to an elevated juridical level (usually to the constitutional level), thus affording greater protection, but simultaneously also a greater justificatory basis to claim entitlements (Kotzé, 2012a: 199). In this sense human rights are ‘high-level public order values or goods at the apex of public policy’ (Weston and Bollier, 2013: 116).

Human rights have played, and continue to play, an important role in mediating the human–environment and the human–human interface in the environmental context. They do so by: foster-ing stronger environmental laws; providing a safety net that closes gaps in environmental laws; providing non-derogable minimum standards for environmental governance; improving imple-mentation and enforcement of environmental laws; promoting environmental justice; increasing public involvement; fostering government and private-sector accountability; improving environ-mental education; and providing a more just interplay between socio-economic demands on the one hand and environmental demands on the other (Boyd, 2012: 233–252). As a counterpoint to these positive attributes, human rights in the environmental context, and specifically environmen-tal rights, have been criticized for being vague (or ‘troublingly indeterminate operationally’, Weston and Bollier, 2013: 117–118), absolute, redundant and undemocratic; for being non-justicia-ble, which means they are incapable of being settled by law or by the action of a court; for being too anthropocentric due to their promotion of economic and social freedoms, too culturally impe-rialist, too focused on individuals as a result of their grounding in liberal individualism and for being disingenuous by creating false hope (Boyd, 2012: 33–44).



Kotzé 3

In similar vein, while this article does not critically consider the coherence, cogency and legiti-macy of human rights, it is worth briefly pointing to some criticisms leveled against human rights generally which are relevant in the environmental context. For example, human rights are often negatively perceived to be couched in a masculinist ontology because they are based on the male as the basis for their normativity; because of their predominant Western characteristics, human rights sometimes exclude indigenous non-Western cultures and concerns, thereby compromising and limiting the model of universal nature and experiences that human rights seek to espouse; the promotion and protection of human dignity through material wellbeing is seen as the core of human rights, which is mostly achieved through increased economic security and, hence, increased con-sumption activities (Petersen, 1990); due to a lack of competitive market forces that press states for compliance, supra-national human rights instruments are mostly ineffective (Hathaway, 2002: 1935–1937); because the origin of human rights also have religious roots, they are used in a per-verse way to justify unjustifiable encroachments on the rights and interests of others (Shestack, 1998: 205–206); related to the foregoing, human rights provide the justificatory basis for complete human mastery over the world that lies outside the human being, also by creating entitlements instead of duties and responsibilities as well; and human rights are individualistic, thus countering efforts that seek to foster greater harmonious interdependence (Gearty, 2010: 7–8).

Yet, despite these valid criticisms, it seems as if the popularity of human rights in the environ-mental context is increasing. It is, for example, estimated that approximately 147 countries have entrenched environment-related rights in their national constitutions to date with a recent empirical study showing that on balance, rights, despite their many shortcomings, observably improve the overall environmental governance effort (Boyd, 2012: 245–251). If this number is anything to go by, one could reasonably assume that human rights will continue to remain essential constructs in the global environmental regulatory domain. To this end, Hajjar Leib (2011: 1–2) estimates that: ‘[T]he human rights system offers sophisticated legal and extra-legal mechanisms necessary to tackle both the severe impact of human activities on the environment and the human rights implica-tions of ecological degradation’.

On balance, as creatures of law and as legal mechanisms possessing unique characteristics ena-bling them to perform a singular mediating role in the human–environment interface, human rights will remain an important part of the larger environmental law and governance effort. If we accept the continuing prevalence of human rights, is there any reason to believe that their traditional role, nature, objectives and construction should change because of the Anthropocene? I believe that there is.

The purpose and structure of this article

Some might suggest that the current ecological crisis has made human beings more resourceful. They may also argue that nature itself is resourceful and capable of being increasingly resilient which suggests that the Anthropocene epoch is not all bad, except that it raises the stakes in terms of the political battles that need to be fought and mediated upon. Taking a more critical view in line with the majority of commentators on the Anthropocene, this article, however, suggests that the Anthropocene brings starkly to the fore the possibility of a human-induced mass extinction on Earth, the potential for the loss of resilience and functional integrity of the Earth and its systems, and a host of uncertainties that go to the core of human existence in an anthropogenically altered and human-dominated Earth System (Wagler, 2011; Woodwell, 2002). As a result, one could rea-sonably expect that there would be a renewed focus on the role of law more generally and, more specifically, human rights in the Anthropocene. Accordingly, the central question that this article




poses is: to what extent will the Anthropocene conceptually affect our vision of the mediating role of human rights in the environmental context and our vision of the relationship between human rights and the environment?

The enquiry commences with a brief description of its focus. It then proceeds to a discussion of the meaning and nature of the Anthropocene by specifically focusing on those features of the Anthropocene that might influence conceptions of human rights and the environment as they are currently embedded in the social institutions of environmental law and governance. The argument then uses climate change as a useful explanatory context briefly to identify and to understand the different types of rights issues that might arise in the Anthropocene. The next part of the discussion then takes stock of human rights in the environmental context by evaluating the way in which they currently mediate the human–environment interface – a discussion which will show that business-as-usual approaches to human rights and the environment are probably inadequate to accommodate the myriad socio-political and ecological challenges that arise in the Anthropocene. The article concludes with suggestions founding a re-imagination of the relationship between human rights and the environment in the Anthropocene.

Where necessary, I draw on the South African legal framework and its environmental right for illustrative practical examples, and for the sake of global relevance, also on the Earth Charter. The Earth Charter seeks to provide an ethical framework for sustainable interaction between humans and non-human living entities in a more just and peaceful world. It is a civil society ethical frame-work that has been widely endorsed by communities, business, governments and non-governmen-tal organizations (Bosselmann and Engel, 2010). In this sense, I use the Earth Charter where possible as a moral soft law framework upon which to build the case for an understanding of ‘rights’ which are appropriate for the Anthropocene.

Focus

There are various different ways to describe the manifestation of rights in the environmental con-text. While there may be other classifications, some use ‘environmental rights’ and ‘environmental human rights’, while others prefer ‘human rights and the environment’ (Hajjar Leib, 2011: 3). While there is little agreement on the conceptual difference between these terms, it is generally accepted that ‘environmental rights’ relate to the (mostly substantive) right to a clean and healthy environment that is not harmful to health and wellbeing. ‘Environmental human rights’ is a some-what broader category of reference that could include all human rights that have a bearing on the environment, including procedural and substantive rights (e.g. the rights to human dignity, life, administrative justice, access to information and access to justice).4 ‘Human rights and the envi-ronment’ is the broadest category of the three because it situates human rights and the environment as two separate yet distinctly interrelated issues. I find the latter categorization to be the most appropriate for the purpose of this article because the focus on ‘human rights and the environment’ allows for a decidedly holistic consideration of the relationship between all human rights (be they procedural or substantive, ecocentric or anthropocentric) and the environment.

As well, in accordance with the all-encompassing idea of the Earth System, I connote a broad meaning to the term ‘environment’. Rockström et al. (2009: 23) define Earth System as:

… the integrated biophysical and socioeconomic processes and interactions (cycles) among the atmosphere, hydrosphere, cryosphere, biosphere, geosphere, and anthroposphere (human enterprise) in both spatial – from local to global – and temporal scales, which determine the environmental state of the planet within its current position in the universe.



Kotzé 5

Expressed thus, all Earth System processes are characterized by non-linear feedbacks and com-plex, unpredictable interactions that range between the living biosphere as well as physical and chemical processes (Kosoy et al., 2012). For regulatory purposes in the context of the legal domain, I understand the ‘environment’ to include in its broadest sense: living nature including people, micro-organisms, plant and animal life; the man-made environment; land, water and air; and the complex physical, chemical, aesthetic and cultural properties and processes that are part of the entire Earth System.

Exploring the Anthropocene

The term ‘Anthropocene’ was recently coined by Paul J Crutzen and Eugene F Stoermer unoffi-cially to denote a new epoch in the geological timescale (Crutzen and Stoermer, 2000). As the Editorial to the first issue of this journal explains, the Anthropocene unofficially signifies a new human-induced geological epoch which expresses the geological significance of anthropogenic change (Oldfield et al., 2014). The Anthropocene suggests that the Earth is rapidly moving into a critically unstable state with Earth systems gradually becoming less predictable, non-stationary and less harmonious as a result of the global human environmental imprint. In doing so, the Anthropocene raises a seemingly straightforward practical question with more complicated and far-reaching moral implications: in this time of aggressive global change, how and to what extent are humans able to respond adequately to this unequal balance in the human–environment and human–human relationship through their socio-legal institutions, including human rights?

As a concept, the Anthropocene removes much of the hitherto prevailing uncertainty that it is people that are responsible for global ecological demise. It therefore re-emphasizes the vagaries of anthropocentrism, which is understood in the present context to be ‘the attitude that presents the human species as the centre of the world, enjoying hegemony over other beings and functioning as masters of a nature which exists to serve its needs’ (Domanska, 2010: 118). To be sure, anthropo-centrism is seen to be the ‘philosophical driving force behind ecological crises’ (Hajjar Leib, 2011: 27). By denoting human beings as a force of nature or a geological agent (as opposed to their being at the mercy of forces of nature), the Anthropocene makes humans the principal determinants or ecological agents of the environment (Chakrabarty, 2009). This insistence could have profound moral implications for society, especially insofar as people will now have to question their central-ity in the human–environment relationship precisely because it is this very centrality which has led to the transition from the ‘forgiving’ Holocene to the supposedly apocalyptic Anthropocene. Humans will also therefore have to question the prevailing dominance of anthropocentrism and the potential and reformative possibilities that other environmental ethics such as ecocentrism may hold. (As the counterpoint of anthropocentrism, ecocentrism emphasizes the intrinsic value of nature and the central tenet of the concept lies in ‘removing humanity from the center of the uni-verse and replacing it with nature’ (Hajjar Leib, 2011: 28.)) Most importantly though, humans will have to start taking seriously a new position of responsibility they hold as a result of the Anthropocene; a responsibility that extends not only to themselves and their own survival, but also to the natural living, but non-human, world.

The Anthropocene also sets the background for a new regulatory paradigm to the extent that it provides for a new kind of understanding about environmental degradation and environmental harm, which it expresses through the idea of ‘planetary boundaries’. There is a realization that we are crossing those planetary boundaries that represent the dynamic biophysical ‘space’ of the Earth System within which humanity has to date evolved and thrived. These planetary boundaries ‘respect Earth’s “rules of the game” or, as it were, define the “planetary playing field” for the




human enterprise’ (Rockström et al., 2009: 5). So, instead of viewing environmental degradation as localized and media- or issue-specific incidents that have little cumulative impacts which could easily be controlled through localized responses, the argument that we are now pressing against planetary boundaries seeks to refocus our attention on the non-negotiable planetary preconditions that humanity needs to respect in order to avoid the risk of calamitous global environmental change.

To avoid reaching critical tipping points in the Earth System that might lead to rapid and irre-versible change, regulatory efforts in the Anthropocene should strive to ensure survival and con-tinuation of life on Earth (Biermann et al., 2012). These efforts must be accomplished through a range of preventive, mitigation and adaptation strategies in society’s economic, political, cultural, religious, broader social and legal structures. While the Anthropocene will conceptually in all like-lihood exert tremendous strain on society’s existing normative systems, it nevertheless presents an urgent call for dramatic regulatory interventions of a kind hitherto unseen if we are to avoid cross-ing these tipping points. A significant component of this regulatory response will have to be legal because it is through law, among other social institutions, and its myriad constructs such as rights, that society determines and guarantees limits and allocates responsibilities (Philippopoulos-Mihalopoulos, 2014).

Human rights and the Anthropocene: The example of climate change

If we accept that human rights as a part of the broader legal paradigm must be employed in regula-tory interventions for the Anthropocene, what are the different types of environment-related human rights issues that could arise in the context of the Anthropocene? The answer lies, at least partly, in the revealing phenomenon of climate change because climate change is a clear expression of a global human-induced ecological disaster in the Anthropocene.

Climate change has become a substantial scholarly concern mostly because of the need to under-stand the science behind it; the ineffectiveness of law, governance and human rights in their attempts to sufficiently respond to climate mitigation and adaptation; its global nature, impact and reach; and its intergenerational or temporal dimensions (e.g. Arnold, 2011). The following issues all popularly permeate the climate governance–human rights discourse and they are exemplary of the types of rights issues that might also arise in the Anthropocene: intergenerational justice and the intergenera-tional application of rights; the procedural rights of non-state parties and their rights to representa-tion and participation in the climate negotiation process; the rights of states (especially low island states); the responsibilities and liabilities of states and multinational corporations for climate change; the rights of ecological or climate refugees; possible infringements of the fundamental rights to property, life, human dignity and equality as a result of climate-induced ecological degradation; the rights to property, development and poverty alleviation, especially of least developed communities; the protection of minorities and indigenous peoples; rights that protect and provide basic socio-economic entitlements such as access to water; issues of equity and justice as exemplified by the North–South divide within and between states; and the possible rights of the environment itself, including species that are becoming extinct due to climate-induced habitat loss (Knox, 2009; Limon, 2009; Spier, 2012). The example of climate change suggests that rights issues in the Anthropocene will probably revolve around, among others: the ability of rights to protect the environment; the inter- and intra-generational application of rights and their ability to ensure equity; the extent to which rights could achieve environmental justice; procedural rights related to good governance; the limits that rights impose on development vis-à-vis the environment; and the range of public- and private-sector duties to protect, respect, promote and fulfill rights-based obligations.



Kotzé 7

Unsurprisingly perhaps, these issues do not differ much from those that permeate the prevailing human rights and environment discourse, thus suggesting that the arrival of the Anthropocene will not herald an introduction of any new issues into the environment and human rights paradigm. But while the issues will remain the same, as I indicate below, the urgency to address these issues, the extent to which they should be addressed, and our approaches to human rights in the environmental context, must manifestly change as a result of the Anthropocene.

Taking stock of human rights and the environment

What are the prevailing characteristics or traditional traits of human rights and human rights–environment discourse that could negatively impact on the utility of human rights in the Anthropocene? First, the human rights and environment discourse is mostly mono-disciplinary. To date, human rights have mostly been the exclusive domain of law, philosophy, politics and other social sciences, and there remains (perhaps deliberately) a deep divide between the ‘social world’ of philosophy, anthropology, sociology, politics, law and economics on the one hand, and the ‘material world’ of engineering and natural science on the other (Uhrqvist and Lövbrand, 2009). The inevitable result is that the potential utility of human rights, both as scholarly legal constructs and as practical legal tools to mediate the human–environment interface is significantly diluted for the sake of a reality where science will in all probability have to play an increasingly dominant role in broader institutional regulatory efforts.

Second, tensions between ecocentrism and anthropocentrism continue to pervade the human rights–environment arena (Feris, 2008). An anthropocentric formulation of environment-related rights stems from the core foundation of human rights, i.e. human rights are concerned with the human and with the rights flowing from being human. As Gearty (2010: 7–8) explains:

… the [anthropocentric] discussion is invariably about the self-fulfilment of the individual, his or her ability to set goals for leading a full life and then being free to go on to achieve those targets. The debate is about what are the necessary building blocks of such a successful life; it is not about what that life can or ought to do to make the world around it a better place, even for others to live in, much less simply for the planet’s sake.

Such a formulation thus sees the environment as a life-sustaining good or entitlement to be added to all other material conditions of human welfare including housing, food and healthcare. Anthropocentric-oriented rights are utilitarian and they focus on the socio-economic context thus seeking to ground, improve access to and expand human claims to resources with a view to ensuring economic development in its widest sense (Bosselmann, 2005). An ecocentric formula-tion of environment-related rights instead sees the environment as a condition to life, thus plac-ing limitations on individual freedoms. Stopping short of giving rights to the environment (with minor exceptions as indicated below), ecocentric rights accordingly are more inclined towards limitations of human entitlements to resources. They recognize the intrinsic and not the func-tional value of the environment, while simultaneously seeking to preserve ecological integrity (Bosselmann, 2005). Mostly, human rights in the environmental context have a decidedly anthro-pocentric focus where rights emphasize the utility of the environment and ecosystem goods and services for the benefit of human health and wellbeing (Boyd, 2012: 40–41). For example, South Africa’s environmental right provides that ‘everyone has the right to an environment that is not harmful to their health or well-being’ (section 24 of the Constitution of the Republic of South Africa, 1996). There are very few exceptions to this more general trend. Two exceptions, how-ever, are Ecuador and Bolivia’s constitutional experiments incorporating a more ecocentric




objective into human rights by granting the environment a ‘right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution’ (article 71 of the Constitution of Ecuador). This right-formulation is the first of its kind at the constitutional level and it is exemplary of one of the possible (but likely unpopular, due to its limitations on growth), manifestations that an ecocentric right might take.5

While ecological formulations of human rights could admittedly be criticized for many reasons, they do provide an opportunity to restrict socio-economic (developmental) activities that obstruct natural cycles, structures, functions and processes, while promoting ecological resilience (Gibson-Graham and Roelvink, 2009). Yet, human rights in the environmental context continue to be anthropocentric and the ecocentric formulation of rights continue to be resisted by human rights formulations in the environment context, and more specifically, by the powers with vested interests in keeping rights anthropocentric. Clearly in some instances, such as the South African environ-mental right, the ‘environmental’ right bears more on socio-economic developmental claims that are disguised as ecological safeguards because rights formulated in this way almost always justify socio-economic development at the expense of ecological concerns. The result is that today, there remains little doubt that anthropocentric human rights have simply not been adequate in confront-ing the political economy and power structures of industrial capitalism. Herein lies the fundamen-tal conundrum humanity finds itself in: given prevailing political realities, increased demand for limited resources, and the prevailing global consumer-driven culture coupled with continuously increasing population growth, how can society ever shift to an ecocentric approach? A radically different human culture is probably needed (including values, laws, institutions and so forth), but we can only make incremental changes through these and the results will not always be immedi-ately apparent. It would be naïve to imagine that laws and human rights alone could affect the necessary changes to an ecologically sensitive and respectful society. The possible role for law and human rights in this respect is a much more nuanced (and realistically limited) one which asks the question: to what extent could a more ecocentric formulation of human rights contribute to a changed human culture that shows greater respect for Earth and its systems?

Third, related to the previous point, human rights in the environmental context are often used disingenuously in the sustainable development paradigm to advance socio-economic develop-ment at the cost of ecological concerns. This is because the orthodox three-tiered (social– economic–environment) and ‘development versus conservation’ approach of sustainable devel-opment continues to dominate efforts to mediate the human–environment interface. These trite sustainability constructs also remain the most generally accepted framework in which to cast environmental law, governance and rights. The South African environmental right again provides a useful example in this respect, because it affords people a right ‘to have the environment pro-tected, for the benefit of present and future generations, through reasonable legislative and other measures that … secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development’ (section 24 of the Constitution of the Republic of South Africa, 1996). In other words, the environmental right recognizes the need for development that is ecologically sustainable, but only insofar as ecological concerns do not inhibit justifiable socio-economic development. Through this weak form of sustainability, the environ-mental right could be used to advance socio-economic developmental interests while ecological interests remain at the periphery of concern.

Fourth, to date there is neither a universally applicable hard law instrument in the form of a global treaty, for example, that explicitly provides for a substantive environmental right (Turner, 2014), nor has such a right been accepted into the corpus of customary international law.6 It is only regionally that treaties explicitly provide for environmental rights, which are all anthropocentic.



Kotzé 9

These include the American Convention on Human Rights, 1969 with its San Salvador Protocol of 1988 that states: ‘[e]veryone shall have the right to live in a healthy environment and to have access to basic public services’ (article 11(1)); and article 3(2) of the Asian Human Rights Charter, 1998 providing for the right to a ‘clean and healthy environment’. The Arab Charter on Human Rights, 2004 also includes a right to a healthy environment as part of the right to an adequate standard of living that ensures wellbeing and a decent life (article 38), and article 24 of the African Union’s (AU) African (Banjul) Charter on Human and Peoples’ Rights (African Charter) states: ‘[a]ll peo-ples shall have the right to a general satisfactory environment, favorable to their development’. The latter Charter is considered the first international law instrument to explicitly recognize a substan-tive environmental right (Du Plessis, 2011). The only potential candidate for a procedural rights-based approach to environmental matters is the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), 1998 that provides in article 1 for the right ‘to live in an environment adequate to his or her health and well-being’ and for a whole range of procedural rights to protect and enforce the former.7 Despite these regional arrangements, the operation of human rights continues to be seriously restricted by state borders and sovereignty, which results in fragmented protection of individual interests in specific countries and/or regions rather than a more holistic and universalistic approach. Rights are also ‘localized’ because they mostly apply to the present generation. In other words, rights, generally speaking, do not function globally in a temporal sense, any more than they do in a geographical sense. This situation clearly means that rights are unlikely to be able, on their present construction, to respond to the intercon-nected nature of the myriad intertwined and temporally linked concerns that the Anthropocene raises.

Fifth, the fragmented approach of current rights-based orderings is contrary to the intercon-nected conception of the Earth and its systems and it is not conducive to accommodating the degree of interconnectedness that the Earth System and Earth System governance (as the most likely global governance candidate in the Anthropocene) demands. Biermann et al. (2010: 202) define Earth System governance as:

… the interrelated and increasingly integrated system of formal and informal rules, rule-making systems and actor-networks at all levels of human society … that are set up to steer societies towards preventing, mitigating and adapting to global and local environmental change and, in particular, earth system transformation, within the normative context of sustainable development.

Thus described, Earth System governance is clearly meant to be a holistic and integrated response to the complex problems in the Anthropocene and is set to become the new global environmental governance paradigm in the Anthropocene age (Kotzé, 2012b). Human rights will conceivably also (have to) play a role in Earth System governance, but they can only do so if they become more compatible with this integrated approach to Earth System governance’s holistic premise. While separate issues such as biodiversity conservation and water pollution will remain important, like environmental law, human rights will have to take a broader view and ‘must adjust to accommo-date broader notions of [the] environment’ (Godden and Peel, 2010: 6), in a global sense embracing geographical, temporal and environment-issue dimensions characterizing the total-field relations implicated in the Anthropocene. To again use South Africa as an example: in environment-related rights adjudication, the courts continue to view socio-economic and environment-related rights in isolation. As I have pointed out elsewhere (Kotzé, 2010), in its interpretation of the right of access to water in the Constitution of the Republic of South Africa, 1996, the Constitutional Court in the, now infamous, case of Mazibuko and Others v City of Johannesburg and Others (CCT 39/09




[2009] ZACC 28) chose to divorce socio-economic entitlements that the right of access to water guarantees, from the very much interrelated environmental entitlements and protection that the environmental right offers.8 It probably did so because it mistakenly failed to see the crucial role that water plays in broader environmental (which automatically also implies socio-economic) con-cerns (Kotzé and Bates, 2012). This is a classic example of the institutionally driven disconnect between the brown (socio-economic) and green (ecological) agendas. The brown agenda prior-itizes pervasive challenges related to improving human wellbeing without harming the environ-ment, especially in developing country contexts. Yet, the fear of over-emphasizing the green agenda must not be over-stressed. Ideally the intricate, and often conflicting, interconnection between brown and green issues should be recognized and responded to in a non-hierarchical and integrated way that best mediates potential dichotomies arising from seemingly opposing interests (Grant et al., 2013).

Considerations for a new vision of human rights and the environment in the Anthropocene

In view of the foregoing considerations, our approach to human rights and the environment, or at least some aspects thereof, will have to be overhauled in response to the challenges of the Anthropocene. While the issues that the human rights–environment relationship raises in the Anthropocene will remain similar to those we are struggling with today, it is our approaches to addressing these issues and the depth and span of these approaches that will probably have to change. What are some of the considerations (there may be many others) that could affect the way we will have to re-imagine the relationship between human rights and the environment in the Anthropocene epoch?

‘Humanizing’ the Anthropocene

In addition to their orthodox and more specific functions, human rights have the distinct potential to ‘humanize’ the Anthropocene. They could do it in the same way that they have been ‘humaniz-ing’ climate change by providing a human perspective to ecological disasters. For Limon (2009: 450–451):

… a human rights perspective or ‘human rights lens’ helps shift the focus of international debate on climate change more directly onto individuals and the effects of climate change on their lives. This, in turn, has important potential consequences for how climate change is perceived. One of the key failings of climate change diplomacy over the past two decades is that the phenomenon has been viewed as a scientific projection … It is far harder for world governments to remain ambivalent in the face of human suffering, especially when that suffering is on a global scale and is man-made, than is the case with physical phenomena such as melting icecaps or bleaching coral. Humanizing climate change thus creates an ethical imperative to act that can with time translate into legal obligations.

Or, as Gearty (2010: 21) explains, ‘an insistence on attention to human rights has the effect of forc-ing all decision-makers to look outside their own circle, to see the human as well as the global consequences of their actions’. I would suggest that human rights have a similar ‘humanizing’ role to play in the Anthropocene because they have the ability to transcend the pure scientific domain in which we usually understand Earth System changes. In this way, human rights could bring the ecological crises of the Anthropocene closer to human understanding, as it were, by providing a human perspective on anthropogenic change and its ecological consequences. This could be



Kotzé 11

accomplished, for example, at a scientific level through deeper cross-pollination between Earth System sciences and the social science of human rights; and at a policy and governance level through drafting of laws and human rights that actually consider and which are sensitive to Earth System evidence and predictions, and which aim to set limits on human behavior according to scientifically determined boundaries in the Earth System.

Of course this does not mean that human rights should promote an anthropocentric focus at the cost of a more ecocentric one (see the discussion below). Human rights in the Anthropocene should rather be seen to have an extended remit or vision – namely – to address ecological and socio-economic concerns that arise in the Anthropocene more effectively because they are translated into ‘human’ terms by admitting the inevitability of the human perspective that insists on the non-privileged participation of humans in the Earth System (De Lucia, 2013). In this way human rights could be used to ignite different forms of state responsiveness – and normative responsiveness more generally – being deployed instead of ‘normal’ environmental law and governance mecha-nisms, in order to address more broadly some of the ecological, socio-economic, legal and political crises in the Anthropocene. Human rights could therefore acquire a broader utility and function and should be applied as such to mediate more comprehensively the human–environment interface. More importantly, as Limon suggests above, human rights could be used to create the ethical imperatives that could later be translated into legal obligations creating specific duties and corre-sponding entitlements in order to address the ecological and socio-economic vagaries of the Anthropocene. However, for human rights adequately to carry the human face of the Anthropocene, they will have to be both interrogated and reimagined from a broader multidisciplinary framework, and moved beyond the current limits of black letter law and legal positivization to respond to a richer and more complex set of imperatives and concerns. Humanizing the Anthropocene through human rights should thus also seek to enable a greater degree of inter-disciplinary research con-cerning the meanings and manifestations of human rights. While the term ‘Anthropocene’ was coined by a chemist and a marine scientist, the challenge will now be how to translate this geologi-cal phenomenon and its treatment in the natural sciences to the social sciences, focusing on the place and role of people in the environment, and the social institutions through which people medi-ate the human–environment interface.

Indeed, the very distinction between the social and material world in the human rights and envi-ronment context might have to fall away in the Anthropocene if the collective scientific responses to human rights challenges arising in the Anthropocene epoch are to be comprehensively approached and applied to the Earth System idea in any meaningful way. The complexity and indivisibility of the holistically conceived Anthropocene, the centrality of the human and human (social) processes in this phenomenon, and the global interconnectivity between anthropogenic ecological impacts and the effects of these impacts on humans and the Earth and its systems, demand a far more diverse and integrated view and a multidisciplinary scientific approach that should focus on the relationship between, for example, the legal and the ecological, and the ecological-legal and the socio-political-economical. In fact, ‘it is this interconnectivity and the unprecedented scale of the human transformation of the Earth system that calls for a new paradigm in the way science seeks to understand global environmental problems and to provide solutions’ (Leemans et al., 2009: 4–5). The same can confidently be said of human rights-based approaches; the Anthropocene demands the search for a new paradigm.

From anthropocentrism to ecocentrism

In the Anthropocene, ‘any attempt to explain or predict the behavior of large biophysical systems can no longer succeed without addressing human actions as a central concern’ (Kotchen and Young,




2007: 149). As suggested above, humans are central to the idea of the Anthropocene in many ways. First and most generally, humans stand at the conceptual core of the Anthropocene – as its etymo-logical roots indicate: the term ‘Anthropocene’ derives from the Greek ‘anthro’ and ‘cene’ which mean ‘human’ and ‘new’ respectively (Slaughter, 2012: 119). Second, and more specifically, the Anthropocene implies the idea that humans are the principal instigators of global environmental change and that humans are responsible for the Earth moving out of its former geological epoch, the Holocene. A third reason for the centrality of humans to the Anthropocene is the idea that humans are intrinsically coupled with, and that they form a part of, Earth and its biophysical sys-tems: it is clear that human and biophysical systems are coupled where human actions affect bio-physical systems, biophysical forces affect human wellbeing, and humans respond variously to these forces (Kotchen and Young, 2007). This does not, however, mean that humans are – or should be – the central concern in the Earth System. They remain only a part of this system which ‘behaves as a single, self-regulating system comprised of physical, chemical, biological and human compo-nents’ (International Geosphere-Biosphere Programme, 2001).9 In other words, while the Anthropocene identifies humans as being the central cause of the crises in the Anthropocene, it does not mean that humans are the central concern for Anthropocene normativity, for responses to its crises, or primary beneficiaries of any regulatory and/or normative interventions. Ecological concerns should carry equal weight despite (or perhaps as a counter measure to) the fact that some of the most prominent international environmental soft law instruments, among others, worryingly state that ‘[H]uman beings are at the centre of concerns for sustainable development’ (Rio Declaration on Environment and Development, 1992, Principle 1).

It has been suggested that the Anthropocene is confronting head-on the dominant place of humanity in the natural world as expressed by widely endorsed international environmental law instruments (Steffen et al., 2011: 862). Neoliberal hegemony is deeply entrenched in the world’s regulatory regimes with the majority of legal orders structurally committed to furthering neoliberal anthropocentric objectives, assumptions and closures which continue to threaten the living order (Grear, 2013).10 Neoclassical, neoliberal, welfare economic thinking and rationale choice theories are manifestly grounded in anthropocentrism, which blatantly ignores intra- and intergenerational equity. Some even argue that consumerism, as an expression of this type of economic thinking, is ‘sanctioning ecocide through its ignorance of natural limits’ (Slaughter, 2012: 122). Moreover, the liberal notion of human rights that is grounded in Modernity, itself pits humans as masters of nature and entitled recipients against a defenseless environment (Bosselmann, 2004). To be sure, human rights, with their anthropocentric focus and liberal ideas of individual freedom and human dignity, are partly to be blamed for the current ecological overreach. Such closures provide a haunting analogue to the way in which human rights in the environmental context are also imprisoned by the prevailing illogic of anthropocentrism.

A new ethic is evidently required in the Anthropocene. What would this ethic be? I would suggest that the answer, perhaps unsurprisingly and rather uninspiringly, lies in ecocentrism. Lövbrand et al. (2009: 12) propose that ecocentrism may very well gain renewed attention in the Anthropocene: ‘[D]escriptions of the world as an intrinsically dynamic, interconnected web of relations in which there are no dividing lines between the living and non-living, or the human and non-human … reso-nate well with the Anthropocene imagery’. At the heart of the ecocentric ethic lies the realization that the future of life on Earth depends squarely on safeguarding ecological integrity,11 which would, among others, require a deliberate effort to shift the parochial orthodox human focus that human rights have held since Modernity, to a more inclusive ecological one which does not only include responsibility for the self, but also for all other non-human entities: ‘[i]n the light of the fact that no species can survive without respecting its ecological conditions, an anthropocentric perception of



Kotzé 13

human freedom [as expressed by human rights in this instance] appears as an absurdity. It is the saw to cut the branch we are sitting on’ (Bosselmann, 2004: 63). The move towards an ecocentric ethic could be facilitated by means of human rights but only if these rights themselves are constructed in such a way as to underline their amenability to the promotion of ecocentric characteristics and val-ues. In other words, to become more ecologically responsible as well, human rights will have to redefine the individual freedom they seek to provide and protect, even if this might also mean that human rights could loose their individual character and become something else entirely; something more grounded in communal and group conceptions of rights that extend well beyond individual freedom.

In contemplating the reasons for environmental law’s ineffectiveness, Richardson proposes that: ‘[I]n theory, environmental law can be a means of serving both our own-self-interest, such as by safeguarding drinkable water or breathable air, as well as extending enlightened protection to other creatures, such as conserving endangered species or advancing animal welfare’ (Richardson, 2001). Extrapolated to human rights, this argument could be equally true. As with environmental law more generally, human rights could therefore provide the ethical means for ‘enlightened pro-tection’ which should shift its human-dominated focus to a more balanced ecocentric-anthropocen-tric vision. So, instead of its manifestly anthropocentric formulation that states:

Everyone has the right:

(a) to an environment that is not harmful to their health or wellbeing; and(b) to have the environment protected, for the benefit of present and future generations,

through reasonable legislative and other measures that:

( i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting

justifiable economic and social development.

the South African environmental right could assume a more ecocentric orientation which could include something along the following lines:

Everyone has the right:

(a) to an environment that is not harmful to their health or wellbeing; and(b) to have the environment protected, for the benefit of present and future generations

and for the benefit of sustaining ecological integrity, through reasonable legislative and other measures that:

(i) prevent pollution and ecological degradation;(ii) promote conservation; and(iii) secure ecologically sustainable development.

Such a formulation resonates particularly well with the alternative ecological formulation of the relationship between humans and the environment as expressed by Principle I of the Earth Charter which provides for ‘respect and care for the community of life’. It is an example of the necessary paradigm shift that seeks to ensure a holistic and more collective consideration of the welfare of both humans and other living non-human entities (Bosselmann, 2004).




Another possibility is a ‘human right to commons- and rights-based ecological governance’, that has been taken up in the recently proposed Universal Covenant Affirming a Human Right to Commons- and Rights-Based Governance of Earth’s Natural Wealth and Resources. This right provides a system: ‘for using and protecting all the creations of nature and related societal institu-tions that we inherit jointly and freely, hold in trust for future generations, and manage democrati-cally in keeping with human rights principles grounded in respect for nature as well as human beings, including the right of all people to participate in the governance of wealth and resources important to their basic needs and culture’ (article 1(1) Commons Law Project, 2013; Weston and Bollier, 2013).

A far more extreme ecological reformulation of human rights, in the Universal Declaration of Rights of Mother Earth, 2011, has recently been proposed by the Bolivian government to the United Nations. The Declaration recognizes that the Earth is a living entity and as a result ‘Mother Earth’ could lay claim to the full range of fundamental rights normally attributed to humans includ-ing, among others: the right to life and to exist; the right to be respected; the right to regenerate its bio-capacity and to continue its vital cycles and processes free from human disruptions; the right to maintain its identity and integrity as a distinct, self-regulating and interrelated being; the right to water as a source of life; the right to clean air; the right to integral health; the right to be free from contamination, pollution and toxic or radioactive waste; the right to not have its genetic structure modified or disrupted in a manner that threatens it integrity or vital and healthy functioning; and the right to full and prompt restoration.12 Considering the legal fraternity’s continued resistance to afford trees standing (to paraphrase Stone (1972)), and the prevailing strong political resistance to such a drastic change to the foundations of law which collectively work to undermine the legiti-macy of the proposed Declaration, it is understandably likely that this proposal will not gain any credence soon. Yet, the fact that the debate has been initiated in the global political arena suggests that it could make it less difficult in future to negotiate for human rights that are more ecocentric and collective in their orientation.

In sum, an ecological reorientation of rights evinces the potential that human rights could have to refocus attention away from serving human needs exclusively, to an approach that instead seeks to ensure care for human wellbeing, while simultaneously respecting the limits of Earth’s life-supporting systems and the ecological integrity of other species. At the very least it is one, among other attempts, to give ‘ethico-juridical significance to the material situations of countless human beings, non-human animals and living ecosystems placed in unprecedented danger by the irrespon-sible pursuit of profit and by its associated ecological legacies’ (Grear, 2013: 111).

Sustainable development, human rights and the environment

The anthropocentrism versus ecocentrism debate also relates to the sustainable development para-digm, which is popularly used as a conceptual framework for environmental law and rights. I would suggest that the Anthropocene requires a new vision of sustainable development, which is required to reform current visions of human rights in the environmental context and simultane-ously to achieve a dramatic shift from the orthodox existing conceptions of sustainable develop-ment through which humans justify and rationalize their environmental claims.13 Why is this so? Like modern environmental law, human rights are ‘increasingly blinded by ideological palliatives such as ‘sustainable development’ that help us rationalize our continuing encroachments upon the planet’ (Richardson, 2001). For example, the South African environmental right constitutionalizes sustainable development through entrenchment thereof and it seeks to ensure ecologically sustain-able development, only then to dilute this obligation by inserting the ‘justifiability criteria’ referred



Kotzé 15

to above. In other words, ecological sustainable development should be secured, but only to the extent that it is justified in the socio-economic development and needs context. In this way sustain-able development, as a constitutional ideal, is used as a constitutionally mandated rationalization, justification even, for discarding ecological concerns in favor of socio-economic ones.

What is also clear is that the greatest fallacy of weak sustainable development in general, and more specifically in the Anthropocene paradigm, is its disingenuousness and its complacent prom-ise of sufficient resources in a time of global ecological upheaval. In even starker retrospective terms: ‘[sustainable development] has failed to meaningfully change the human behavior that cre-ated the Anthropocene’ (Craig and Benson, 2013: 843). To be sure, sustainable development has been used as the ethical justification for the legal creation of deeply embedded anthropocentric human demands on dwindling resources. This is evident in, for example, the United Nations Declaration on the Right to Development, 1986, which explicitly acknowledges that: ‘the human person is the central subject of the development process and … development policy should there-fore make the human being the main participant and beneficiary of development’.14

As well, sustainable development as a political concept remains fundamentally disconnected from the scientific realities of the Anthropocene, presupposing as it does, that humans have the ability to determine what the minimum requirements are that would be necessary to maintain eco-logical integrity, and ultimately to control, through their laws and other regulatory interventions, the Earth System (Craig and Benson, 2013: 847). This is all but impossible in the Anthropocene, which is characterized by multi-scalarity, complexity, non-stationarity and other variables which lie beyond human control. The Anthropocene neither allows developmental issues simplistically to be characterized as being ‘economic’, ‘social’ and/or ‘environmental’ (the 2002 World Summit on Sustainable Development approach); nor does it tolerate decisions with a potential ecological impact to be made based on the impoverished ‘environment versus development’ rhetoric (the 1992 United Nations Conference on Environment and Development approach) (Robinson, 2012). These orthodox weak approaches can only remain tenable if they are sensitive to the complexities of the Anthropcene and if they are recast in ‘stronger’ ecological language which explicitly dis-cards the ‘environment versus development’ distinction or the traditional three-pillar distinction assumed by the current discourse.

The foregoing means that development can only be acceptable if it is ecologically justifiable, which means that weak sustainable development, as a moral framework or ethic for sustainably mediating the human–environment interface, is not credible any longer in the Anthropocene. In this way, the right to development (and other rights that sanction or enable development such as property rights) can only exist and be enforced if they are grounded in and adhere to the dictates of what would be ecologically justifiable in the biosphere as a whole. Similar to the limitation clauses that operate in some Bills of Rights,15 ecological justifiability could place legal restrictions on and limit the right to development and property rights, or for that matter any rights claim that places undue demands on the biosphere. Or, in the words of the Earth Charter, limitations could be justi-fied based on the consideration that: ‘the freedom of action of each generation is qualified by the needs of future generations’ (Principle I(4)(a)).16 Thus, if development disproportionately benefits one generation at the expense of another (future) generation, it would be unjustifiable, and could then be legally limited. And where ecological processes are disrupted by development (in its broad-est sense), it could be justifiable to restrict the right to development, because in the Anthropocene ‘the liberal economic assumptions of ever-growing material accumulations for autonomous con-sumers – the logic of consequence-less consumption – are no longer tenable’ (Dalby, 2007: 159).

Is a world without sustainable development a plausible proposition? I would suggest that it is when viewed through the lens of the Anthropocene and when it is placed against the purpose of




rights. One of the functions of rights in the environmental context is that they should provide enti-tlements to people and provide the moral authority to claim certain benefits; benefits that mostly arise from human interaction with the ecosystem, its goods and services. In the Anthropocene, however, ‘the degrees of freedom for sustainable human exploitation of planet Earth are severely restrained’ (Rockström and Karlberg, 2010: 257). These restraints will similarly have to be imposed on rights to ecological goods and services and this could mean that traditional rights to environ-mental resources might have to be recast in a more limited anthropocentric, but expanded ecologi-cal language, so as to lessen the anthropogenic impact of increased global entitlements and demands. Recasting human rights in this way will have to happen through a paradigm of strong sustainability that seeks to reconnect humans with the environment, as it were.

Rights, equity and justice

For Robin and Steffen (2007: 1712), there are two certainties in the Anthropocene: ‘Earth is singu-lar and beset by anthropogenic change; [and] these changes are unevenly distributed both physi-cally (changes more extreme at the poles) and ethically (environmental injustice)’. Environmental injustice and discrimination and other related issues of intra- and intergenerational equity are thus clearly central to the Anthropocene. While the emphasis remains on traditional manifestations of inequity such as the North–South divide, unequal access to resources, inequalities in the distribu-tion of environmental benefits and a disproportionate spread of historic, present and future state liabilities and burdens, the Anthropocene will necessitate a re-thinking of resource allocation, access and distribution in a much more profound manner. The need to do so arises from the realiza-tion that inequality often drives both excess consumption and population growth, which cumula-tively pushes against Earth System limits, or planetary boundaries (Kosoy et al., 2012). Inequality also exacerbates conflict, and halters any meaningful progression towards cooperative solutions for strong sustainability. There is after all little motivation for impoverished sectors of society to consume even less than they already do, when rich societies are not willing to significantly com-promise as well for the common good through a willingness to more equitably distribute environ-mental benefits and proportionally absorb environmental impacts. As Kosoy et al. (2012: 76) state: ‘[m]oving towards equity will make urgently needed collaborative efforts possible, including negotiations, treaties, multilateral governance approaches, aid for sustainable development, coop-eration in green economy projects and infrastructure, and diversion of funds away from conflict toward needed changes’. How could human rights contribute to facilitating such a reorientation for equality and justice in the Anthropocene? As liberal, Modernist creations, human rights work to promote the freedom of homo oeconomicus (a view that is firmly embedded in neoclassical neolib-eral economics). However, with the restrictions on freedom that a more enlightened ecocentric formulation of rights could bring about, the possibility arises to imagine a type of freedom of what Bosselmann (2004) terms, an ‘enlightened homo ecologicus universalis’. This is a being that is much more connected with the environment, who seeks out solidarity instead of competition, and whose freedom is conditional on the foregoing. Individuals thus become planetary citizens; an idea which the Earth Charter espouses in its preamble as follows:

To move forward we must recognize that … we are one human family and one Earth community with a common destiny. We must join together to bring forth a sustainable global society founded on respect for nature, universal human rights, economic justice, and a culture of peace. Towards this end, it is imperative that we, the peoples of Earth, declare our responsibility to one another, to the greater community of life, and to future generations.



Kotzé 17

As well, the focus in the Anthropocene should move from issue-specific ‘problems’ of environmen-tal inequality, discrimination and injustice, such as those now manifesting in the climate change context (including sea level rise and climate refugees) to more overarching questions of ecological interdependence between humans on the one hand, and ‘the other’, between humans, the Earth and its systems and the manner in which humans benefit from and put pressure on Earth and its systems. Questions of intra- and intergenerational equity in the Anthropocene will thus have to transcend its silo-based and human-centered focus to include issues of equity as far as the Earth and Earth Systems are concerned. Such a holistic and integrated shift will require conceptions of intra- and intergenera-tional equity and justice to move from the anthropocentric to the ecocentric ethic. It will likewise require a re-imagination of justice in the Anthropocene, where conceptions of justice will have to shift the exclusive focus from humans to the entire Earth System, including the achievement of justice for non-living entities (Lorimer, 2011). A conception of environmental justice in the Anthropocene might therefore very well entail a consideration of ecological resources as benefac-tors or claimants and not only as resources that humans, as traditional claimants, see themselves as being entitled to. In this way, ‘ecological justice’ could be more conceptually suitable than ‘environ-mental justice’, because it helpfully shifts the focus from a human-centered approach to an ecologi-cal one in which ecological equilibrium, now and in future, would be the fulcrum not only for the realization of the human rights of access to resources and resource allocation, but also for the extent to which these resources are available to provide access and equitable allocation in substantive terms. For example, Armesto et al. (2010) have a different vision for land use and human claims to land use in the Anthropocene. They postulate that all future land policy decisions should incorporate social values and ecological considerations in equal measure: ‘[N]ew land development policies should define socially acceptable targets considering non-instrumentalist values, different cultural relationships between people and the land, the intrinsic link between local cultures and biological diversity, the protection of local economies, and ethical concerns about the social and environmental consequences of [a] free-market economy’ (Armesto et al., 2010: 157–158).

Another pertinent equity issue in the Anthropocene raises questions with respect to equity in efforts to adapt to a changing Earth in the Anthropocene; it focuses on the ethics of adaptation. While the annihilation of life as we know it during the Athropocene is a distinct possibility, it is also likely that humans will adapt and be able to create livable environments through sheer ingenu-ity. For example, Hodson and Marvin (2010: 299) suggest in an article on ecological urbanism in the Anthropocene that humans might create ‘ecologically secure premium enclaves’ that are remi-niscent of the apocalyptic visions of futuristic science fiction movies. These secure and utter exclu-sive enclaves will transcend conventional notions of ecological constraint by creating ecological security though technological advancement and producing their own food, energy and other life-supporting systems, goods and services, reusing wastes as resources and reducing reliance on external infrastructures. The ecological security of these enclaves would, however, not only depend on factors such as energy efficiency, recycling and reuse, but also on the extent to which limited resources could be provided to a limited population that must deliberately be kept as small, and therefore as exclusive, as possible. This would necessarily entail restricted access as current mani-festations of these enclaves, such as ‘eco-blocks’, ‘urban gated communities’ or ‘ecologically secure gated communities’, already suggest. While these enclaves might provide protection and nourishment for a privileged (rich) few, vast numbers of (poor) people might not be fortunate enough to find protection in these ereas. As Hodson and Marvin (2010: 310–311) state:

Our concern then is that eco-cities represent one particular response to the problems of climate change, resource constraint and energy security in a period of particular ecological emergency and economic crisis.




As such we should see them as the purest attempt to create neo-liberalised environmental security, not at the scale of the whole city or even the planet, but a more bounded divisible security in order to try to guarantee ecological security for elites.

Neoliberalized environmental security thus raises issues of discrimination, equity and justice. This future scenario of secure ecological enclaves is not too far removed from current reality as it exem-plifies what is happening today in cities the world over where rich inhabitants are safely ensconced in protected, privileged areas while poor masses have to survive on the bare minimum. And the gap between rich and poor is growing in most countries as reflected by rising income disparity. Scientific predictions, however, are more or less in agreement that anthropogenic ecological disas-ters will increase in frequency and severity, and it is therefore likely that the intra- and intergenera-tional divide between rich and poor people will only deepen as ecological disasters and food and energy scarcity in the Anthropocene intensify. Moreover, deliberate attempts to increase neoliber-alized environmental security by the few who are able to do so, will probably increase exponen-tially, at a dire cost to the remainder of the world population. While human rights are fighting an uphill battle today in dealing with environmental injustice, discrimination and inequality, this situ-ation is likely to become worse as the rich–poor divide, and the circumstances causing the divide, exacerbate. Herein lies a profound challenge to human rights in the Anthropocene: namely how to effectively address inter- and intergenerational justice on such a large scale. What would arguably be required, among others, is for human rights not to be hijacked to serve any neoliberal environ-mental security agenda, but instead to serve the broader Earth community to ensure equality and justice as far as the proportional and equal spread of environmental costs and benefits among eve-ryone on Earth, is concerned.

Rights, social human interiors and external structural change

In exploring the potential of human, cultural and institutional innovations to react to the realities of the Anthropocene, Slaughter (2012: 122) argues that ‘the most profound and potentially influen-tially shaping responses to the global predicament originate … in … social and human interiors’. Because of their deep moral foundations, human rights could be considered to be external legal means to transmit innate and internal human entitlements ‘to the outside’, as it were. Human rights are legal constructs and law is an external or objective deposit of human experience (Nagan and Otvos, 2009). Human rights then, as part of the human interior, could play a profound role to achieve some form of external change. The changes that these internally rooted external means (rights) should bring about must be more than incremental; they will have to exude some trans-formative force that would also lead to structural changes. In the words of Biermann et al. (2012: 1306):

… incremental change – the main approach since the 1972 Stockholm Conference on the Human Environment – is no longer sufficient to bring about societal change at the level and with the speed needed to mitigate and adapt to Earth system transformation. Structural change in global governance is needed, both inside and outside the UN system and involving both public and private actors.

While human rights and the rights-based approach to environmental governance have been part of the post-1972 global legal and governance constellation (including at local, national, regional and international levels), they have only marginally contributed to the minimal incremental changes that have occurred (Weston and Bollier, 2013). Some strides have been made in addressing proce-dural and substantive issues, such as in the case of rights to participation and access to justice, as



Kotzé 19

well as the right to a clean environment, but the structural impact of rights is questionable in the larger scheme of things. Mostly, human rights have proved insufficient to achieve the types of structural changes that are necessary to meaningfully address the myriad socio-political, legal and ecological challenges in the Anthropocene.

For human rights to contribute to more fundamental structural changes, the world arguably requires a paradigm shift in world politics, law and governance similar to the human rights revolu-tion that occurred in 1945 with the creation of the United Nations structures and the adoption of the Universal Declaration of Human Rights in 1948. What would be needed is an ‘environmental moment’ in history with an impact equaling that of the Second World War, the 11 September 2001 terror attacks in the USA, or the recent global financial collapse, which have changed the way we perceive and seek to regulate human rights issues, security issues and global financial issues respectively.17 The social, economic and legal changes to our socio-legal, economic and political structures that occurred following these events (even though some might argue these to be mere cosmetic modifications), suggest that changes to the socio-legal, political and economic architec-ture of humanity are possible, but only if events are perceived by humans as being sufficiently threatening to our safety, wellbeing, quality of life and indeed to human life itself.18 If this were to happen, the establishment of a more powerful United Nations environment organization to replace the less-than-influential United Nations Environment Programme (UNEP) could be made more palatable to world leaders by justifying its creation from a human rights-based perspective. While the need for thoroughgoing global structural reform is by no means a novel proposal, with many propagating the idea of a World Environment Organization,19 the idea that it should be based and justified by invoking the morality of human rights is a refreshing perspective which resonates well with similar calls for the establishment of, for example, a United Nations Climate Change Security Council (Ng, 2010).

Could imminent catastrophic ecological disasters herald an ‘environmental moment’ that will achieve the deep structural changes that are necessary to survive in the Anthropocene? While some already argue that climate change has the potential to threaten peace and security in the way that other major catastrophes have done (Ng, 2010), the great majority of scientific evidence points to the inevitability of ecological crises and to the potential for socio-economic collapse in the Anthropocene. In this sense, the Anthropocene itself could be exemplary of an ‘environmental moment’. Admittedly the threats of the Anthropocene are less immediate or sudden than, for exam-ple, a nuclear war – and accordingly, they have not yet been sufficient to affect the human concep-tion of security and to achieve the deep structural changes that would be required. Anthropogenic ecological threats such as climate change are instead passive-aggressive because they are not viv-idly expressed and perceived as violence, nor are they (yet) fully products of inter- or intra-state political and ideological tensions (Ng, 2010). As Richardson (2001) states:

Crises sometimes can trigger major structural reform … The problem is that most environmental problems and threats, such as climate change, are catastrophes in relative slow motion; although in geological time their emergence and impact can be exceptionally rapid, they remain perceptibly rather long-term for humankind.

The contribution of human rights to effecting structural changes in the environmental context will thus depend on perceptions and on the ability of human rights to contribute as moral and ethical justifications for wholesale structural reform of the global environmental law and governance architecture (as they did in the aftermath to the Second World War). It is, however, more likely that in the absence of a large-scale and sudden ‘environmental moment’, change would come from, what Weston and Bollier term, a ‘Grotian Moment’ that ‘presents an unusual opening in our legal




and political culture for [gradually] advancing new ideas for effective and just environmental pro-tection’ through, among others, civil resistance movements and new sorts of internet-based col-laboration and governance, where human rights could play a central role (Weston and Bollier, 2013: 118–119).

Conclusion

In the struggle for survival on Earth, the Anthropocene has thrown down the gauntlet. There is little doubt that the future of life on Earth will depend on how we are able to respond to the many challenges that the Anthropocene presents. To survive, humans ultimately have to stay within certain thresholds that are both morally derived and determined by bio-geophysical thresholds (Folke et al., 2011). While human rights are not too familiar with setting bio-geo-physical thresholds, they can establish duties, entitlements, moral boundaries and governance obligations that could create the foundation of a legal normativity responsive to, and acting in tandem with, bio-geophysical thresholds in order to increase chances of survival in the Anthropocene. The allure of human rights lies, among other things, in their ability to transform society, the many socio-political, legal and economic institutions and the manner in which soci-ety interacts inter se and with the environment. This allure is likely to remain in times of increased uncertainty, because in the present uncertain time, humans tend to ‘rely on back-ground values to adopt rules of decision’ (Krakoff, 2010). It is precisely these kinds of back-ground values that are often incorporated into human rights. This, and the continued prevalence of human rights in the environmental context, suggests that rights will continue to play a decid-edly important role in the Anthropocene.

Gibson-Graham and Roelvink (2009: 322) pessimistically propose that:

… responding to the challenges of the Anthropocene … is about human beings being transformed by the world in which we find ourselves … it is about the earth’s future being transformed through a living process of inter-being. But how do we put ourselves (and the Earth) in the way of such transformations? How do we get from an abstract ontological revisioning to a glimmer or a whiff of what to do on the ground? No answer arrives when we ponder this question – just a spacious silence and a slowing down.

I would suggest more optimistically that while human rights do not and cannot provide all the answers to the challenges of the Anthropocene, they do offer a familiar means to society to com-mence with an ontological revisioning that would allow for interventions through which to mediate more effectively the human–environment interface. This would, however, require some re-imagin-ing of human rights themselves in the environmental context, and more specifically, in the new reality of the Anthropocene.

Acknowledgements

I am indebted to Anna Grear (University of Cardiff), David Boyd (Simon Fraser University), and Brendan Mackey (Griffith University) for their helpful comments on an earlier version of this article. All errors and views are my own.

Funding

This article is a result of a 3-year research project which has been funded in part by the National Research Foundation, South Africa, and the Alexander von Humboldt Foundation, Germany.



Kotzé 21

Notes

1. I understand environmental governance to be a normative institutional regulatory intervention and social construct that is predominantly based on law and that aims to influence how people interact with the environment (Kotzé, 2012b: Chapter 6).

2. There is justified criticism, from an ecological perspective, against this utopian view of law that por-trays it as ‘all good’. For example, Bosselmann (2004) points out that law, because it has its roots in Modernity, have no other comprehension of the environment than as resources that must be made avail-able to satisfy human needs. This instrumentalized attitude of law only reinforces exploitative behavior and deepens ecological ignorance.

3. By ‘instrumentalist’ I mean to refer to the traditional prescriptive role of law as an instrument to direct human behavior through punishment and coercion.

4. Substantive rights are basic rights that provide for substantive claims such as the rights to life, the environment and human dignity. They typically set out a minimum threshold or standard which, if crossed, would open up various avenues for redress through the aid of procedural rights which are used to enforce substantive rights-based claims. Examples are the right to just administrative action; the right of access to information; and rights relating to access to courts and the enforcement of rights. The Aarhus Convention, 1998, discussed elsewhere in this article, is an example of a global instrument aimed at the advancement of procedural environment-related rights.

5. Other recent examples are the 2011 Ecuadorean Court decision protecting the Vilcabamba River (see Greene, 2011), and the recent recognition in New Zealand of the rights of the Whanganui River (2012) (see Postel, 2012).

6. At most, environmental entitlements are inferred indirectly from the provisions of other human-focused but environment-related treaties, such as the International Covenant on Economic, Social and Cultural Rights, articles 7(b), 10(3) and 12, 1966; the Convention on the Rights of the Child, article 24, 1989; and the International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries, articles 2, 6, 7 and 15, 1989 (Shelton, 2010: 266–267).

7. Despite its regional European focus though, this regional treaty is open to accession and ratification, also to non-European countries.

8. See respectively ss. 27 and 24 of the South African Constitution. 9. Emphasis added.10. Grear (2013) uses ‘closures’ in this context to describe the way in which the world order is hegemonic,

and through which it produces limits and a stifling sense of monolithic ideology that closes down the space for other modes of being and thinking by resisting such interventions or engagements with its dominant structures and modes of operation. Closures are those sites or ways of stifling the space for alternatives, crushing critiques, and shutting out alternative ways of proceeding.

11. Ecological integrity entails, among others, a ‘recognition of and respect for the unalterable symbiotic relationship between humanity’s future well-being and the integrity of those environmental processes that are requisite for sustaining the future” (Ayestaran, 2008: 154).

12. See article 2 of the Declaration and World People’s Conference on Climate Change and the Rights of Mother Earth, 2011.

13. See, most recently, Craig and Benson (2013) and Robinson (2012).14. See also the United Nations Declaration on the Right to Development, 1986, article 2, which expresses

this right in similar terms.15. See, for example, s 36 of the Constitution of the Republic of South Africa, 1996, which provides that:

the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dig-nity, equality and freedom, taking into account all relevant factors, including: the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.

16. See also Principle II(5)(e) that sets out the obligation to ‘[m]anage the use of renewable resources such as water, soil, forest products, and marine life in ways that do not exceed rates of regeneration and that protect the health of ecosystems’.




17. Some commentators even believe ‘climate change may be an issue as severe as war’ (Dryzek and Stevenson, 2011: 1865).

18. By this I do not mean to say that the current post-global financial crisis economy is ‘better’ or more suited to the challenges of the Anthropocene. The global economic model remains fundamentally embedded in the neoclassical paradigm that is manifestly blind to long-term sustainability prospects. This is due to its goals being stated in terms of full employment, relative price stability, economic growth and efficiency; all fundamentally anthropocentric in nature (Bosselmann et al., 2012).

19. See, among others, Biermann and Bauer (2005).

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Human Rights and the Environment in the Anthropocene

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